HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY

CIVIL REVISION PETITION No. 1886 of 2019

ORDER:

This civil revision petition, under Article 227 of the Constitution of India, is filed challenging the order, dated 29.03.2019, in I.A.No.463 of 2018 in O.S.No.180 of 2015, passed by the II Additional Junior Civil Judge, Chittoor, whereby the petition filed, under Order VI Rule 17 CPC r/w Rule 28 of Civil Rules of Practice, was dismissed.

2. The petitioners before this Court are the unsuccessful petitioners/plaintiffs before the trial Court in I.A.No.463 of 2018 in O.S.No.180 of 2015. The petitioners filed the said petition before the II Additional Junior Civil Judge, Chittoor, under Order VI Rule 17 CPC r/w Rule 28 of Civil Rules of Practice, seeking leave of the Court to amend the plaint schedule, which forms part of the plaint, alleging that the total extent of the plaint schedule property, as per document, dated 19.04.1998, from East to West is 26 years or 23.719 meters and from North to South is 17 yards or 15.655 meters, in which the petitioners are having half share. But by oversight, in the 2nd item of the plaint schedule property, the North to South measurement was mentioned as 19 yards or 57 feet instead of 17 yards or 51 feet. While taking steps for commencement of trial, this mistake was detected and unless this mistake is rectified, it is difficult to proceed with the trial. Therefore, the petitioners sought leave of the Court to amend the plaint.

3. The 1st respondent filed counter. Respondents 2 to 6 filed a Memo adopting the counter filed by the 1st respondent. The 1st respondent denied the material allegations in the affidavit filed in support of the petition, inter alia contending that the respondents have seriously contested the injunction application and the petitioners obtained an interim injunction order and, subsequently, the respondents preferred an appeal in C.M.A.No.12 of 2017 on the file of the VIII Additional District Judge, Chittoor, and after full-fledged hearing, the VIII Additional Dstrict Judge, Chittoor, allowed the C.M.A. by setting aside the decree and order, dated 25.01.2017, passed by the II Additional Junior Civil Judge, Chittoor, in I.A.No.657 of 2016 in O.S.No.180 of 2015, and consequently, the said I.A.No.657 of 2016 was dismissed. Though both the injunction application in I.A.No.657 of 2016 and C.M.A.No.12 of 2017 were disposed of on merits only, in spite of having sufficient knowledge about the measurements shown in the plaint schedule, the petitioners did not take any steps to rectify the mistake. Therefore, there are no merits in the petition and the same is liable to be dismissed.

4. Upon hearing argument of both the counsel, the trial Court passed the impugned order, dismissing the application filed by the petitioners.

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5. Aggrieved by the same, the present revision petition is filed, mainly contending that the trial has not yet commenced and the petition is only to rectify the typographical mistake and such mistake would not take away the valuable right, if any, accrued to the respondents, such amendment can be allowed at any stage and prayed to set aside the impugned order allowing the revision petition and I.A.No.463 of 2018.

6. This Court initially ordered notice to the respondents and the counsel for the petitioners took notice and filed postal track consignments, which disclose that notice on the respondents was served, but none appeared. Even otherwise, when registered letter was sent to the correct address of the respondents, in view of Order V Rule 9 (5) CPC, presumption can be drawn that such notice was served on the respondents, after 30 days from the date of sending notice. Therefore, notice is deemed to have been served on the respondents.

7. During hearing, learned counsel for the petitioners reiterated the contentions raised in the petition, while submitting that it is only a typographical or clerical mistake and not otherwise and the trial has not yet commenced. Therefore, requested to set aside the order passed by the trial Court and allow the petition in I.A.No463 of 2018.

8. A fair look at the allegation made in the affidavit filed in support of the petition discloses that there is a clear mistake in item

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No.2 of the plaint schedule with regard to measurements. The boundaries are not in dispute. Further, the petitioners do not want to claim right in the property in excess of the original measurements shown in the plaint, but they want to reduce an extent of 2 yards or 6 feet and such amendment, even if allowed, would not take away the right of the respondents, if any, accrued to them. But, the trial Court dismissed the application, on the sole ground that the reasons assigned by the petitioners are not convincing.

9. In a recent judgment in Varun Pahwa Vs. Mrs. Renu Chaudhary (Civil Appeal No.2431 of 2019 dated 01.03.2019), the Apex Court held that amendment petitions cannot be dismissed on technical grounds. If the principle laid down in the aforesaid judgment is applied to the facts of the present case, the reason assigned by the petitioners i.e., oversight is a justifiable cause to exercise power under Order VI Rule 17 CPC to permit the petitioners to rectify the mistake and such order would not take away the valuable right that accrued to the respondents or change the nature of the suit or cause of action and thereby the order passed by the trial Court is liable to be set aside.

10. In Rameshkumar Aggarwal v. Rajamala Exports Private Limited and others¹ , the Apex Court relying on Revajeetu Builders and Developers v. Narayanaswamy & Sons and others² , highlighted the scope of proviso to Order VI Rule 17 C.P.C., laid

¹ AIR 2012 SC 1887

² 2009(8) SCJ 401

down certain guidelines for granting or denying relief under Order VI

Rule 17 of CPC viz., as follows:

"On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment.

1. Whether the amendment sought is imperative for proper and effective adjudication of the case?

2. Whether the application for amendment is bona fide or mala fide?

3. The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;

4. Refusing amendment would in fact lead to injustice or lead to multiple litigation;

(5)Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case? and

(6) As a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.

These are some of the important factors which may be kept in mind while dealing with application filed under Order VI Rule 17. These are only illustrative and not exhaustive.

It is clear that while deciding the application for amendment ordinarily the court must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide and dishonest amendments. The purpose and object of Order VI Rule 17 of the Code is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. Amendment cannot be claimed as a matter of right and under all circumstances, but the courts while deciding such prayers should not adopt a hyper-technical approach. Liberal approach should be the general rule particularly, in cases where the other side can be compensated with costs. Normally, amendments are allowed in the pleadings to avoid multiplicity of litigations.

24. The Apex Court further held that,

"amendment application to be filed if necessary immediately after filing suit i.e. before commencement of trial. If the petitioners are able to prove or explain as to how they failed to take steps before the trial commenced despite exercising due diligence, the Court can allow such amendment. The factum of exercising due diligence depends upon circumstances."

11. If these principles are applied to the present facts of the case, the proposed amendment by seeking leave of the Court is bona fide and not with any mala fide intention. But however, the power of this Court under Order VI Rule 17 CPC is subject to proviso thereto introduced by Act 21 of 2002 and according to proviso to Order VI Rule 17 CPC, the Court can grant leave to amend the pleadings, if the petitioner explains that despite exercise of due diligence, those facts could not be brought on record and failed to bring on record those facts. Here, in this case, the petitioners filed an application under Order 39 Rules 1 and 2 CPC and the petitioners herein obtained an interim injunction order and, subsequently, the respondents preferred an appeal in C.M.A.No.12 of 2017 on the file of the VIII Additional District Judge, Chittoor, and the same was allowed by setting aside the decree and order, dated 25.01.2017, passed by the II Additional Junior Civil Judge, Chittoor, in I.A.No.657 of 2016 in O.S.No.180 of 2015, despite the respondents raising a contention with regard to measurements. However, the trial has not yet commenced in the present case and the question of subjecting the petitioners to pay costs to the respondents for such delay does not arise. The application filed by the petitioners can be allowed, as it is filed before commencement of trial and as it is only a technical error either typographical or clerical, by applying the principle laid down by the Apex Court in Varun Pahwa (supra).

12. In view of my foregoing discussion, the order passed by the trial Court is illegal and the same is liable to be set aside.

13. In the result, the civil revision petition is allowed setting aside the order, dated 29.03.2019, passed by the II Additional Junior Civil Judge, Chittoor, in I.A.No.463 of 2018 in O.S.No.180 of 2015, and consequently, the said I.A.No.463 of 2018 is allowed permitting the petitioners to amend the plaint as claimed in the petition. There shall be no order as to costs.

As a sequel, miscellaneous petitions if any pending in the revision petition shall stand closed.

_________________________________ M. SATYANARAYANA MURTHY, J

16th August, 2019 cbs

HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY

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Civil Revision Petition No.1886 of 2019 (allowed)

16th August, 2019